Why Africans Can Sue the American Behind Uganda’s Anti-Gay Law in U.S. Federal Court

Hate on Trial: What the Case Against Scott Lively Really Means

Scott Lively (center) enters U.S. District Courthouse in Springfield, Massachusetts, in January 2013.

Photo by John Suchocki/The Republican/masslive.com

Anti-gay pastor Scott Lively will stand trial in federal court for crimes against humanity. He has tried for months to have the case dismissed on First Amendment grounds, but the 1st Circuit Court of Appeals in Boston has denied his last petition for dismissal. He’s going to court.

Lively, who lives in Springfield, Massachusetts, is a 57-year-old author, attorney, pastor, and anti-gay activist. (He would call himself a “pro-family” activist.) In 1992, he helped pass America’s first anti-gay legislation, a short-lived ordinance banning any support of homosexuality in Springfield, Oregon. He then co-wrote The Pink Swastika, a book that posits homosexuals “as the true inventors of Nazism.” In 1997, he founded Abiding Truth Ministries, apparently “the first Christian organization devoted exclusively to opposing homosexuality.” For more than 20 years, he has been fighting what he perceives to be a gay agenda trying to destroy society.

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While Lively is relatively unknown in the United States, he enjoys many supporters overseas, including religious and political leaders in Eastern Europe and Africa. “The most important thing I have learned in my long career fighting for biblical values,” he wrote in 2013, “is that worldview dictates policy.” He doesn’t think locally, he thinks globally, and he has successfully influenced anti-gay policies in other countries, most notably in Uganda from whence the current lawsuit originates. (Lively’s role in stoking homophobic hatred in Africa is captured in the documentary God Loves Uganda.)

With the help of the Center for Constitutional Rights, Lively is being sued by Ugandan human rights organization Sexual Minorities Uganda for violating international law by intentionally contributing to the persecution of Ugandan homosexuals and seeking to deprive LGBT members of the Ugandan population of their basic human rights.

A bit of backstory: In early 2009, having toured Russia, Poland, Latvia, Lithuania, Estonia, Ukraine, and Belarus, advocating the eradication of homosexuality, Lively was invited by evangelists in Uganda to participate in a so-called protection of family values seminar called “Exposing the Homosexuals’ Agenda.” What Lively did there, he would later boast, had the effect of “a nuclear bomb.”

In a country where more than half the population is under 15, and in a culture so deeply rooted in community that family is paramount to an individual’s sense of identity, Lively preached that homosexuals were coming into Uganda to recruit Ugandan children and that homosexuals would rip apart the very fabric of Ugandan society—the family—if they weren’t stopped. He used the United States as an example of what could happen.

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“They have taken over the United States, the United States government, and the European Union,” he declared. “Nobody has been able to stop them so far. I’m hoping Uganda can.” One Ugandan legislator said afterward, confirming the impact of Lively’s visit, “We must exterminate homosexuals before they exterminate society.”

Adapting Lively’s rhetoric, Ugandan parliamentarians immediately drafted the infamous Anti-Homosexuality Act—also known as the “Kill the Gays” bill because it included the death penalty for repeated “offenses” of homosexuality. Passage of this bill proved complicated (for good reason) and Uganda’s Constitutional Court ultimately struck down a revised version on a technicality. But a new bill, the Prohibition of Promotion of Unnatural Sexual Practices, stands to go before Parliament any day now.

Ever since this anti-gay legislation was introduced, state-sponsored homophobia and hate crimes against LGBT people have escalated. If the new law passes, as well as ensuring a climate of paranoia in which anyone might be accused of promoting unnatural sexual practices, LGBT individuals will suffer even more. As pariahs of the state, they are more likely to become homeless, unemployed, cut off from health care and legal services, ostracized by friends and family, and made economically destitute. There is also an increased chance they will become victims of blackmail, suicide, and violent crimes sanctioned by “mob justice.”

But if Ugandan legislators are firing the gun, Lively arguably handed them the bullets, and extraordinary repercussions have ensued. This is why he is being charged as an abettor himself: for promoting the hatred and persecution of a minority.

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In her discussion of the merits of the case in an August 2013 Slate piece, Dahlia Lithwick points out that Lively’s lawyers, Liberty Council, have argued that their client should not be charged with “violating international norms,” because, in fact, the laws in many countries support discrimination against the LGBT community. But federal Judge Michael Posner, in his dismissal of that earlier appeal, wrote, “the fact that a group continues to be vulnerable to widespread, systematic persecution in some parts of the world simply cannot shield one who commits a crime against humanity from liability.” Nor can Lively walk away from the charges by claiming protection under the First Amendment. The current three-judge panel declared: “his right to extraordinary relief is not clear and indisputable.”

Potentially a landmark case, since it is the first of its kind to address human rights violations based on sexual or gender orientation, Sexual Minorities Uganda v. Scott Lively has been brought into U.S. federal court under a centuries old, yet unusually modern act: the Alien Tort Statute.

One of America’s earliest statutes, passed in 1789 by the first Congress, the ATS provides non-U.S. citizens with jurisdiction for violations of international law. Human rights abuses were not part of legal discourse 200 years ago, but the 20th century witnessed a widening of accountability for abuse. Today, the ATS is used in cases of torture, genocide, war crimes, inhumane treatment, violence against women, and crimes against humanity. It provides a valuable “means of redress for survivors of human rights abuses,” and herein lies the great significance of the case against Lively.

In human rights abuse cases, there is frequently more than one perpetrator, but not all can necessarily be held accountable. In Uganda, the LGBT community cannot sue President Yoweri Museveni or members of Parliament for persecution, no matter how responsible these leaders may be for creating an atmosphere that sanctions the abuse of a minority. Moreover, in an increasingly hostile political environment, Ugandan gay activists have fewer options for justice. But they have legal recourse against American Scott Lively as a result of the ATS. Their voices can still be heard.

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Furthermore, in a case such as this, the ATS promises less physical risk for the plaintiffs, since the trial will take place in the United States. This helps ensure that the virtues of the case—such as its ability to affirm that LGBT persons are worthy of protection anywhere in the world—will not, one hopes, be clouded by subsequent violence.

Gay activists in Uganda have waged court battles at home, but suing for their rights can come at a very high cost. They can literally die for it. In January 2011, David Kato, considered the father of the Ugandan gay rights movement (he co-founded Sexual Minorities Uganda), was murdered in his home after winning a seminal right-to-privacy case for the LGBT community. Authorities said there was no connection between his court victory and his murder; that’s debatable. The fact remains that Kato was silenced forever.

As the Center for Justice and Accountability explains, ATS cases give plaintiffs “the chance to tell their stories and the stories of those who did not survive.” These cases provide a means for exposing abuses, entering them into the public record, and helping plaintiffs “put an end to the culture of impunity that exists in their home country.”

Since ATS cases are civil lawsuits, guilty verdicts return monetary awards to the plaintiffs. If convicted, Lively will not serve jail time; rather, he will have to pay damages. As a result, some will argue that Sexual Minorities Uganda has sued solely for the money, but that is laughable. This case is not about money. It is about public accountability. No price can be put on the number of people who have suffered from Lively’s “nuclear bomb.”

Top Comment

'You can safely assume you've created God in your own image when it turns out that God hates all the same people you do.' - Anne Lamott More...

Evangelists like Scott Lively feel the war against gays has been lost in America so they must take the fight elsewhere. But let this case send a message: All life is sacred and any form of persecution, anywhere, is indefensible. It is absolutely unacceptable for a U.S. evangelist to preach hate in a foreign country—in the name of “family values”—and promote the oppression of homosexuals. That this case has not been dismissed, despite repeated attempts by the defendant, affirms that persecution by an American abroad can indeed go to trial here at home and that sexual and gender minorities have a right to claim protection from abuse.